Every candidate sees himself as a viable candidate while contesting the elections and with this desire, the person himself and his party members may adopt certain unfair and corrupt practices in order to make their position. It is thus essential to make punishable such offences in order to ensure free and fair elections.
The provisions making the offences relating to elections punishable have been provided in the Indian Penal Code, 1860 (hereinafter referred as ‘IPC’) under Chapter-IXA. This Chapter of the Indian Penal Code was introduced by the Indian Elections Offences and Inquiries Act. 39 of 1920, Section 2.[1]
Actions such as bribery, undue influence, personation and other such malpractices during elections which hamper ones right to caste vote freely have been made punishable under the provisions as mentioned in Section 171A- 171I, IPC. Such offences have been made punishable internationally, for eg. – In the United Kingdom there was the Corrupt and Illegal Practices Prevention Act, 1883 for corrupt practices and offenses related to election.
In the IPC, the following actions have been made punishable explicitly-
1. Bribery u/s. 171B punishable u/s. 171E
2. Undue Influence u/s. 171C punishable u/s. 171F
3. Personation u/s. 171D punishable u/s. 171F
4. False statement in connection to the elections u/s. 171G
5. Illegal payments or unauthorized expenditure u/s. 171H
6. Failure to keep election accounts u/s. 171I
The first legislation introduced by the Parliament covering the law of elections was the Representation of People’s Act, 1951. However, it was essential to insert the provisions in IPC as they would apply not only to the Parliamentary elections but to every other kind of election, to the municipalities, panchayats, and other such local authorities.
The objective of this Act and the provisions under the IPC is to ensure that the Voters are able to vote freely without any fear and have a true representation of the Candidates.
Section 171A, IPC defines who is a ‘candidate’ and what their ‘electoral rights’ are. It therefore defines the 2 key terms for the purpose of elections.
Section 171A, IPC reads as follows-
“171A. “Candidate”, “Electoral rights” defined.- For the purposes of this Chapter:
1. “candidate” means a person who has been nominated as a candidate at any election;
2. “electoral right” means the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election.”
It is therefore a definition clause for the purposes of election related offences. Therefore, any false representations made by the candidate at the time of filling the application would constitute an offence u/s. 170A as such representation would violate the electoral rights of the other candidate.[2]
However, when Smt. Indira Gandhi threatened a few national leaders with the objective of unduly influencing them to change their decision and nominating Shri Reddy as their Presidential Candidate, the Supreme Court held that such a threatening wouldn’t constitute interference with the electoral rights as defined u/s. 171A.[3]
Bribery
Section 170B, IPC defines Bribery and what may constitute bribery, which is made as a punishable offence under Section 170E, IPC.Section 170B reads as follows-
“170B. Bribery-(1)Whoever –
- gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or
- accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right, commits the offence of bribery;
Provided that a declaration of public policy or a promise of public action shall not be an offence under this section.
- A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratification.
- A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward.”
The punishment for Bribery has been stated under Section 171E, IPC, which reads as follows-
“170E. Punishment for bribery- Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both;
Provided that bribery by treating shall be punished with fine only.
Explanations– “Treating” means that form of bribery where the gratification consists in food, drink, entertainment, or provision.”
Bribery thus means giving or taken gratification, as a motive or as a reward to any person. This could be with the intention of inducing him to stand or not to stand for the election, or to withdraw or to vote or not vote in the particular elections.
The Supreme Court took the definition of ‘Gratification’ by referring to Section 123(1)(b) of the Representation of Peoples Act and observed that gratification is not restricted to pecuniary gratification or that which are estimable in money, and would include all forms of entertainment and all forms of employment for reward barring bona fide election expenses.[4]
Gratification may thus be understood to be something valuable, capable of satisfying a person’s aims, objectives or desires. It is not necessary for this gratification to be estimable in terms of money. This together formulates the test which may be required to test whether there was any gratification or not.
If the test is positive, then the act would amount to commission of an offence punishable u/s. 170E which stipulates imprisonment for a period upto 1 year or fine or both.
Undue Influence
Undue influence has been defined under Section 171C which is parallel to Section 123(2), Representation of Peoples Act, is made punishable under Section 171F, IPC. In order to constitute the offence of undue influence, there should be a voluntarily or attempted interference with the right of a person to enjoy his electoral rights, i.e., to stand for elections or to withdraw from the same or with the person’s right to vote.
For example- circulation of anonymous pamphlets, which were prepared with knowledge and consent of the Respondent party, in the Parliamentary hall attacking the rival candidate would amount to undue influence as covered under Section 171C, punishable u/s. 171G, IPC.
However, if under the same set of facts, if the complainant is neither able to prove the charge that the candidate was involved with or responsible for circulation of the pamphlet, not that the elections were materially affected, it wouldn’t amount to infringing the elections u/s 171C.[5]
It therefore consists in voluntary interference or attempts at interference with the free exercise of any electoral rights.[6] Section 171C, IPC reads as follows-
“171C. Undue Influence at elections– (1)Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election.
- Without prejudice to the generality of the provisions of sub-section (1), whoever
- threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or
- induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub-section (1).
- A declaration of public policy or a promise of public action, or the mere exercise or a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section.”
Such acts of undue influence have been made punishable under Section 171F, which reads as follows-
“171F. Punishment for undue influence or personation at an election-Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both.”
The ambit of undue influence is wide enough to include threats of injury to a person or property. It shall also include illegal persuasion, divine displeasure or interference with the liberty of the candidate at, or a voter of, any election.[7]
For example- if the opposition party spreads across the voters in the country that the Complainant Party has not banned cow slaughter, and therefore by voting for them, we would also commit the sin, it would amount to threats. Such threats would further be covered within the ambit of ‘Undue influence’ under Section 171C.
The act alleged as constituting undue influence must be in the nature of a pressure of tyranny on the mind of the candidate or the voter.[8]
In the case of Ram Dial v. Sant Lal[9], the Supreme Court considered whether an act would be considered to constitute ‘undue influence’only after having an actual affect. The Court clarified that unlike how it is in the English law, under the Indian law, what is material is not the actual effect produced, but the commission of such acts as are calculated to interfere with the free exercise of any electoral right.
Mere exercise of legal rights without the intention to interfere with the electoral rights wouldn’t amount to undue influence. Therefore, for eg.- Letters addressed by a Minister to the voters to vote for a particular candidate, to by a leader to all the members of the party to cast their vote to the party candidate was held not to constitute acts of undue influence.
The opposite party could negatively influence the voters against the complainant at any stage and that would amount to ‘undue influence’. Thus, this could actually be when the voter is making his opinion or casting his vote or considering the merits and demerits of the candidates.
Another important factor which may decide whether the act is punishable u/s. 171C is the gravity of the allegations. Eg- Aiming at the character of the complainant versus falsely accusing him of poor leadership or requisite knowledge to be able to successfully hold the post.
Such actions of undue influence have been made punishable u/s 171F with imprisonment of upto 1 year or with fine or both.
Personation at the Election
Personation primarily is an identity theft. It means ‘assuming the identity of another person with the intent to deceive’. Section 171D, IPC deals with personation at elections, and reads as follows-
“171D. Personation at elections– Whoever at an election applied for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence or personation at an election”
The essence of the offence thus is that the offender pretends to be other than what he really is. It implies false pretence.[10] In order to prove personation, it is essential to show that the offender had a guilty mind or corrupt motive.
Therefore, if a voter has his name appearing in 2 different lists in the polling station, because of which he believes that he had 2 votes, he cannot be held guilty for this under this section.[11]Similarly, if a son votes on behalf of his father who is quite ill, believing that he could be authorized to do so. Under such circumstances, the son cannot be held guilty under this section.[12]
However, if the person knew that he was not allowed to caste 2 votes but still did the same, he would be held guilty under this section. In such cases, corrupt motive is not required to be proven as he knew he was not entitled to cast the second vote. Therefore, mens rea in this case is implied.
A person so guilty under Section 171D shall be punished under Section 171F which provides for imprisonment for a term upto 1 year or fine or both.
Publishing Deliberate False Statements
It is commonly seen that election campaigns of candidates consists of certain misrepresentations, lies etc. which may be termed as ‘dirty tactics’ to affect the choices of the voters, thereby impacting the election results. Grantham J once said, “it is a great pity that in elections at the present time so many false statements are made and that votes are obtained this way.”[13]
Such actsin India have been discussed under Section 171G which states that-
“171G. False statement in connection with an election– Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine.”
Therefore, to invoke Section 171G, it is necessary to show that:
1. an election was impending;
2. the accused made or published a statement;
3. this statement concerned the personal character or conduct of the opposing candidate;
4. the intention behind publishing the statement was affecting the results of the election;
5. the accused who made the statement was aware or had the knowledge that the statement was false or believed to be false or he did not believe it to be true.
Therefore, if candidate A makes false statements against candidate B that he was previously convicted for the murder of his servant, even though candidate A knows that he was merely a witness to the entire crime scene and not an accused or guilty party, candidate B would be convicted under this provision.
This is because candidate B always knew that candidate A was seen as a viable candidate for the coming elections due to his commitment to improve the conditions in the nation. B knew that the statement he was making was false and affecting the character of A, and he stated so in order to attract more votes in his favor, thereby shaking the judgment of the voters and affecting the final results.
The offence of making or publishing false statements deliberately in connection with an election is punishable with fine.
Illegal Payments
“171H. Illegal payments in connection with an elections-Whoever without the general or special authority in writing of a candidate incurs or authorizes expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees;
Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.”
This section therefore makes all the unapproved and unauthorized payments by the candidate, illegal. The intention behind enacting this provision is to prevent corruption which is likely to be caused by the Candidates to impact the election results.
Any candidate held guilty for making illegal payments in connection with an election shall be punished with fine which may extend to five hundred rupees.
Failure to Keep Election Accounts
“171I. Failure to keep election accounts- Whoever being required by any law for the time being in force or any rule having the force of law to keep accounts of expenses incurred at or in connection with an election fails to keep such accounts shall be punished with fine which may extend to five hundred rupees.”
By virtue of this provision all the candidates are required to maintain their accounts and if they fail to do so, they would be punished with fine which may extend to Five hundred rupees. The intention behind enacting this provision is to maintain and check and balance on the expenditure which is being incurred by the Candidates.
Certain reforms were proposed by the Fifth Law Commission[14] which were relating to the substantive and structural changes in Chapter IX-A of the Indian Penal Code, 1860. However, none of these provisions have been complied with till this date. The reforms proposed included[15]:
1. Recalling the definition of ‘electoral rights’ as it does not expressly refer to the Candidate’s right to withdraw his candidature in an election. The definition should be modified to incorporate ‘to withdraw or not to withdraw’ his candidature.
2. The provision dealing with bribery and the punishment for the same should be clubbed together for clear understanding.
3. enhancing the punishment for the offence of bribery considering its gravity and seriousness.
4. Instead of having such a wide definition for ‘undue influence’, there should be a stricter definition. It was also recommended to further mention in the definition any violent method of interfering with the free exercise of an electoral right.
5. Similar to previous recommendation on bribery, the Commission recommended bringing together the offence of personation at elections u/s 171D and the punishment for the same u/s 171F.
6. The Commission recommended that the punishment for making any false statements reconsidered and enhanced because of the seriousness of the offence and its impact on the candidate and the entire election system.
It therefore recommended adding imprisonment for a term upto 2 years instead of restricting it to fine only.
1. The commission recommended the deletion of Sections 171G & 171I because they have become otiose.
However, none of these recommendations received any response from the Legislature or the Fourteenth Law Commission.
Illustrations
1. A who was interested in voting for P in the coming elections was threatened and made to vote for Q instead. Such interference with P’s freewill amounts to an offence in conducting free and fair elections.
2. A circulated pamphlets as an anonymous partyin the Parliamentary hall thereby attacking the rival candidate. This would amount to undue influence as covered under Section 171C, punishable u/s. 171G, IPC.
3. P with the intention of reducing competition in the coming elections bribed him to withdraw as a candidate. This would amount to an offence as this interferes in conducting a fair election due to bribery.
4. X who was a candidate in the last elections failed to maintain his electoral accounts and all the expenditure he made during these elections. X could therefore be fined for not maintaining the accounts and not complying with the regulations.
Frequently Asked Questions
1. When were the provisions relating to offences during elections inserted in the Indian Penal Code?
Chapter IX-A of the Indian Penal Code which relates to offences during elections was introduced by the Indian Elections Offences and Inquiries Act 39 of 1920, Section 2.
It punishes offences committed by the Candidates during elections which are internationally recognized and made punishable.
2. Why were these provisions added to the Indian Penal Code when there is a separate statute for offences committed during elections?
These provisions are applicable to elections all over the Country and at every level. Therefore, elections from the Parliament to the State legislature to Municipal elections and elections of all other locals’ authorities are governed by these provisions.
Edited by Parul Soni
Approved & Published – Sakshi Raje
Reference
[1] Shiv Kirpal Singh vs. V.V. Giri AIR 1970 SC 2097.
[2]Bahadur Nath v. State of Rajasthan AIR 2001 Raj 251.
[3] SK Singh v. VV Giri AIR 1970 SC 2097.
[4] Mohan Singh v. Bhanwarlal AIR 1964 SC 1366.
[5] Shiv Kirpal Singh v. V.V. Girl AIR 1970 SC 2097.
[6]Baburao Patel v. Dr. ZakirHussain AIR 1968 SC 904.
[7] M Ambalagam v State (1981) CrLJ 1179 (Mad).
[8]CharanLal v. GianiZail Singh AIR 1984 SC 309.
[9] AIR 1959 SC 855.
[10]KI Vibhute, PSA Pillai’s CRIMINAL LAW, 410 (12th edition, 2014), LexisNexis.
[11]PantamVenkayya v Emperor AIR 1930 Mad 246.
[12] State v. Siddhannath Gangaram (1956) CrLJ 1327 (MP).
[13] Attercliffe Division of the City of Sheffield (1906) 5 O’M & H 218.
[14] Law Commission of India, ‘Forty-Second Report: The Indian Penal Code’, Government of India, 1971, Paras 9A.4, 9A.6, 9A.12- 9A.15.
[15]KI Vibhute, PSA Pillai’s CRIMINAL LAW, 412 (12th edition, 2014), LexisNexis.
